Larry L. Sather, Donor, et al. - Page 18




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          6662 is not applicable to any portion of an underpayment to the             
          extent that an individual has reasonable cause for that portion             
          and acts in good faith with respect thereto.  See sec.                      
          6664(c)(1).  Such a determination is made by taking into account            
          all facts and circumstances, including whether the taxpayer                 
          relied reasonably on a professional tax adviser.  See sec.                  
          1.6664-4(b)(1), Income Tax Regs.                                            
               Larry and John seek relief from the penalty by arguing they            
          relied reasonably on advice from Kaplan.  Reasonable reliance on            
          the advice of counsel or a qualified accountant can, in certain             
          circumstances, be a defense to the accuracy-related penalty for             
          negligence.  See, e.g., Ewing v. Commissioner, 91 T.C. 396, 423-            
          424 (1988), affd. without published opinion 940 F.2d 1534 (9th              
          Cir. 1991); Jackson v. Commissioner, 86 T.C. 492, 539-540 (1986),           
          affd. 864 F.2d 1521 (10th Cir. 1989); Pessin v. Commissioner, 59            
          T.C. 473, 489 (1972); Conlorez Corp. v. Commissioner, 51 T.C.               
          467, 475 (1968).  In those cases, the taxpayer must establish:              
          (1) The adviser had sufficient expertise to justify reliance, (2)           
          the taxpayer provided necessary and accurate information to the             
          adviser, and (3) the taxpayer actually relied in good faith on              
          the adviser’s judgment.  See Ellwest Stereo Theatres v.                     
          Commissioner, T.C. Memo. 1995-610.                                          
               In the instant case, Larry and John have used the accounting           
          services of Kaplan for over 10 years and have always relied on              
          Kaplan with respect to tax matters.  Kaplan prepared all returns            




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